Medical negligence
Hanuman Singh
(Querist) 28 December 2013
This query is : Resolved
I am a defence personnel. Can I file a case in Consumer court for medical negligence by Defence Hospital.
rohitkumar65
(Expert) 28 December 2013
The consumer court will not have any jurisdiction to entertain the case since there is no relationship of consumer and service provider between you and defence hospital.
V R SHROFF
(Expert) 28 December 2013
Answer is : NO.
WHY??
r. K. Mathiharan (Consultant Legal Medicine)
Institute of Legal Medicine
53/27, 5th Street, Padmanabha Nagar,
Adayar,
Chennai - 600 020
The NCDRC’s order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRC’s order decreed that the doctor – patient relationship is a contract for personal service and it is not master – servant relationship. It is also said that the doctor is an independent contractor and the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The ‘how’ is left up to the specific discretion of the independent contractor (doctor). So, the doctor-patient relationship is a contract for personal service and as such, cannot be excluded from CPA.
Highlights of the Supreme Court of India judgment in
Indian Medical Association
Vs
V.P. Shantha and Others
As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section:
1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients.
Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts.
Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court.
As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.
Read more: Consumer Protection Act and Medical Profession-Landmark cases http://www.medindia.net/doctors/cpa/case-1.asp#ixzz2okM3sGtv
Arvind Singh Chauhan
(Expert) 28 December 2013
I think he is a consumer as some amount is deducted from army personal's salary for contributory health service scheme.
Devajyoti Barman
(Expert) 28 December 2013
You have taken service from the hospital free of cost then no case can be filed. Only person availing paid service can avail this Act.
Dr J C Vashista
(Expert) 28 December 2013
I respectfully disagree with the advise of Mr. Arvind considering he is unaware about the fact that defence persons need not pay a single penny for their medical expenses for themselves as well as their families and dependants during service.
However, since individual pensioner need to pay some amount (as per pension scale) after retirment to take Ex-servicemen Contributory Health Scheme benefits, which falls under Consumer Protection Act, 1986
V.T.Venkataram
(Expert) 28 December 2013
The Hon'ble Supreme Court in Laxman Thamappa Kotgiri vs GM, Central Railway, has taken the view that the service rendered to the employees in Railways was not free. The judgement explained that since it was not in dispute that the medical treatment was given to employees and their family members as part of the conditions of service and the hospital was run and subsidised by the employer, namely the Union of India, the husband would be entitled to compensation for medical negligence.The Facts of the present case squarely fit into this Judgement , and hence you can file a conasumer dispute.
Rajendra K Goyal
(Expert) 28 December 2013
firstly you should approach your department for reporting the matter of medical negligence as the hospitals are departmental. Afterwards send legal notice if medical negligence exists.
R.K Nanda
(Expert) 28 December 2013
u can file consumer complaint.
R.K Nanda
(Expert) 28 December 2013
u can file consumer complaint.
T. Kalaiselvan, Advocate
(Expert) 28 December 2013
I fully agree with expert Mr. V.T. Venkatram's opinion on the subject issue.The defence hospital is a government organisation pressed into service and the government is maintaining the entire expenses of the hospital therefore the hospital is not offering a free service and it is not run by a charitable organisation, therefore under the prevailing situations, the defence hospital also come under the purview of negligence or deficiency of services to the consumer hence a reference to a consumer forum to redress the grievance is maintainable.
Raj Kumar Makkad
(Expert) 30 December 2013
You can definitely file such complaint as you pay for the service of hospital as part of your service benefits which means indirect hiring the services of the hospital hence the relationship of consumer and service provider is duly established.
